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Walker v. Conway

April 12, 2007

WILLIE WALKER, PETITIONER,
v.
JAMES CONWAY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

ORDER

On or about January 27, 2004, Willie Walker ("Petitioner") filed a petition pursuant to 28 U.S.C. § 2254 challenging his conviction in state court. See Petition (Docket No. 1). This matter has been referred to the undersigned for the issuance of a Report and Recommendation on Petitioner's petition, and for decisions on all non-dispositive motions. See Order dated October 17, 2006 (Docket No. 16).

Presently before the Court is Petitioner's Motion (Docket No. 11) to augment the state court record relevant to the disposition of his habeas petition by including certain exhibits that he filed in support of his supplemental appellate brief on direct appeal. Petitioner alleges that Respondent failed to include them when he filed his answer and exhibits to the Petition. See Petitioner's Motion (Docket No. 11) at 1-3. Respondent has opposed Petitioner's eleven-page motion (including the proposed documents to the state court record), arguing only that "attachments numbered three, four and five of his motion" should not be permitted to be added as they were not part of the state court record and the request is 'inexcusably dilatory and a deliberate attempt to delay' a decision in this matter." Respondent's Affidavit (Docket No. 12) (quoting Singleton v. Thigpen, 806 F. Supp. 936, 945 (S.D. Ala. 1992)).

In his Motion (Docket No. 11), the documents which Petitioner claims were omitted by Respondent are as follows:

* "Attachment #1" -- Pro-Se Appendix Table of Contents (1 page);

* "Attachment #2" -- portion of pro se brief titled "POLICE MISCONDUCT" (2 pages);

* "Attachment #3" -- a document from the Special Deputy Secretary of State indicating that Mark Lauber (apparently a detective involved in Petitioner's arrest) was commissioned as a Notary Public from 1/1/95 through 3/19/99);

* "Attachment #4" -- the cover letter enclosing Attachment 3;

* "Attachment #5" -- an envelope sent by Petitioner to a person named Darin Grant on 2/13/06.

Beyond asserting that Petitioner is being dilatory, Respondent does not address whether the allegedly omitted items are actually included in the state court records he submitted and provides no argument countering Petitioner's assertions. Accordingly, the Court finds that in the interest of efficiency and judicial economy, that Attachments 1 through 5 are hereby added to the state court record in this matter. The Court finds thatit will not be an undue burden for it and Respondent to review anddocuments in addition to those already submitted.

Petitioner has also submitted a Reply (Docket No. 15) to Respondent's Affidavit attaching several more documents that he asserts should have been submitted by Respondent:

* "Exhibit - 1" -- The Memorandum and Order filed October 29, 2002, by Erie County Court denying Petitioner's Motion to Vacate the Judgment pursuant to New York Criminal Procedure Law § 440.10 ("the C.P.L. § 440.10 motion");

* Exhibit - 2" -- Letter from Oliver Young ("Young"), Esq., Court Attorney for New York State Supreme Court Chambers in Buffalo to the Erie County District Attorney ("the District ...


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